Free Letter - District Court of Delaware - Delaware

Case 1:07-cv-00444-GMS

Document 30

Filed 10/31/2007

Page 1 of 2

MORRIS, NICHOLS, ARSHT & TUNNELL
1201 N O R T H M A R K E T S T R EE T P.O. B O X 1347 W I L M I N G T O N , D E L A W A R E 19899-1347 302 658 9200 302 658 3989 F A X
R O D G E R D. S M I T H II 302 351 9205 302 498 6209 F A X [email protected]

LLP

October 31, 2007 BY E-FILING The Honorable Mary Pat Thynge United States District Court 844 King Street Wilmington, DE 19801 Re: Acuity Brands, Inc. et al. v. Cooper Industries, Inc. et al., C.A. No. 07-444-***

Dear Judge Thynge: I am writing in response to defendants' October 30 letter to the Court concerning their motion to transfer (D.I. 28). Notwithstanding defendants' statements to the contrary, there have been no "significant developments affecting defendants' pending § 1404 motion" (D.I. 28). Although plaintiffs Acuity Brands, Inc. and Acuity Brands Lighting, Inc. (collectively, "Acuity") filed a motion for leave to amend their Complaint on October 26, 2007 (D.I. 27), that motion does not affect in any way defendants' motion to transfer. First, as stated in Acuity's motion to amend, Acuity has agreed to drop Cooper Industries, Inc. as a defendant, based on defendants' representation that "Cooper Lighting is the entity that conducts all of the activities at issue in this proceeding . . ." (D.I. 12 at 4). Cooper Lighting, which is a Delaware corporation, is still a defendant in this action, and still has made no showing that litigating in Delaware -- its state of incorporation -- will pose a unique, unusual and unexpected burden to its operations. See, e.g., ADE Corp. v. KLA-Tencor Corp., 138 F. Supp. 2d 565, 573 (D. Del. 2001) ("[A]bsent some showing of a unique or unexpected burden, a company should not be successful in arguing that litigation in its state of incorporation is inconvenient.").

Case 1:07-cv-00444-GMS

Document 30

Filed 10/31/2007

Page 2 of 2

The Honorable Mary Pat Thynge October 31, 2007 Page 2

Second, as part of a corporate reorganization, Acuity Brands, Inc. has assigned the patents in suit to one of its wholly-owned subsidiaries, ABL IP Holding LLC (which is a Georgia limited liability company). Acuity Brands, Inc. -- the parent company -- is a Delaware corporation and is still a plaintiff in this litigation. Acuity Brands Lighting Inc. -- the company that sells the patented light fixtures -- is also a Delaware corporation and is still a plaintiff in this litigation. Based on defendants' statement in their October 30 letter that they "do not oppose" Acuity's motion for leave to amend (D.I. 28), Acuity respectfully requests that the Court grant Acuity's motion to amend. For the reasons set forth above and in Acuity's Answering Brief in opposition to the Motion to Transfer (D.I. 19), defendants' motion to transfer should be denied. Respectfully, /s/ Rodger D. Smith II Rodger D. Smith II (#3778) cc: Clerk of the Court (By E-Filing) Philip A. Rovner, Esquire (By E-Filing) Kevin C. May, Esquire (By E-Mail)

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